The Supreme Court in the recent decision in the
case of Bridgestone India Private Limited Vs
Inderpal Singh (2016)2 SCC75 has analysed and
interpreted newly inserted provisions in the N.I Act
and has observed as under :
“13. A perusal of the amended Section
142(2), extracted above, leaves no room for
any doubt, specially in view of the explanation
thereunder, that with reference to an offence
under Section 138 of the Negotiable
Instruments Act, 1881, the place where a
cheque is delivered for collection i.e. the
branch of the bank of the payee or holder in
due course, where the drawee maintains an
account, would be determinative of the place
of territorial jurisdiction.
We are in complete agreement with the
contention advanced at the hands of the
learned counsel for the appellant. We are
satisfied, that Section 142(2)(a), amended
through the Negotiable Instruments
(Amendment) Second Ordinance, 2015, vests
jurisdiction for initiating proceedings for the
offence under Section 138 of the Negotiable
Instruments Act, inter alia in the territorial
jurisdiction of the Court, where the cheque is
delivered for collection (through an account of
the branch of the bank where the payee or
holder in due course maintains an account).
We are also satisfied, based on Section
142A(1) to the effect, that the judgment
rendered by this Court in Dashrath Rupsingh
Rathod’s case,would not stand in the way of
the appellant, insofar territorial jurisdiction
for initiating proceedings emerging from
the dishonor of the cheque in the present case
arises.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 177 of 2015
OM STEEL CORPORATION THRO' NARESH SURESHCHANDRA
DELIWALA....Applicant(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 22/02/2016
This Revision Application is filed under section
397 read with section 401 of the Code of Criminal
Procedure (for short “the Code”) to challenge the
order dated 27th March 2015 of learned 3rd
Additional Chief Judicial Magistrate, Surat, in
Criminal Case No. 45028 of 2014 whereby, relying
upon the decision of the Supreme Court in the case of
Dashrath Rupsingh Rathod Vs. State of
Maharashtra 2014(9) SCC129, learned Additional
Chief Judicial Magistrate returned the complaint and
original documents to the present applicant (original
complainant) for being presented before the
competent court.
2. The brief facts giving rise to the present
application are that the private respondents gave 7
cheques totalling to Rs 1901,543/-/- towards
discharging the dues to the applicant Corporation.
The details of the cheques which were drawn on Axis
Bank, Bangalore Branch are as under:-.
Sr.
No.
Cheq
ue no.
Cheque amount Amount of
cheque
2 50412 14/05/2014 Rs 4,00,000
3 50413 14/05/2014 Rs 4,00,000
4 50414 14/05/2014 Rs 4,00,000
5 50415 14/05/2015 Rs 3,01,543
Rs 19,01,543
The applicant presented those cheques for clearance
to its bank namely Bank of Baroda, Ambaji Road,
Branch, Surat. These cheques were dishonoured on
the ground that the payment was stopped by the
private respondents. The applicant issued a legal
notice to the private respondents demanding the
amount of the dishonoured cheques. The notice was
served upon the privates respondents on 28th
December 2013 and 30th December 2013. The private
respondents were also informed in the said notice by
the applicants that they would be compelled to
initiate the proceedings under section 138 of the N.I
Act, if the payment was not made within 15 days from
the receipt of the notice. Despite receipt of the notice,
the private respondent failed to discharge their
obligation of the amount of the dishonoured cheques
nor did they respond to the legal notice. The applicant
was therefore, constrained to file Criminal case no.
45028 of 2014 for the offences punishable under
section 137 of the N.I Act against the private
respondent in the Court of learned 3rd Additional
Chief Judicial Magistrate, Surat, who by order dated
27th March 2015 relying upon the decision of the
Supreme Court in the case of Dashrath Rupsingh
Rathod (supra), returned the complaint along with
its original documents to the applicant for being
presented to the competent criminal court having
jurisdiction to try the case in terms of the decision of
the Supreme Court.
3. The applicant being aggrieved and dissatisfied by
the impugned order passed by the learned trial judge
filed this Revision Application.
4. I have heard Mr. Hardik Dave learned advocate
for the applicant and Mr. N.J Shah learned Additional
Public Prosecutor for the State. There is no
appearance on behalf of respondent no. 2 to 7 despite
service of notice of rule.
5. With a view to overcome the legal proposition of
law declared by the High Court in the case of
Dashrath Rupsingh Rathod (supra), the N.I Act
(amendment) second ordinance, 2015 (herein after
referred to as the Ordinance) came to be promulgated
by the President of India. Perusal of section 1 (2)
makes it manifestly clear that the ordinance is
deemed to have come into force w.e.f 15.6.2015.
Sections 3 and 4 of the of the N.I (Amendment)
Second Ordinance 2015 reads as under :
“3. In the principal Act, section 142 shall
be numbered as sub-section (1) thereof
and after sub-section (1) as so numbered,
the following sub-section shall be
inserted, namely:-
(2) The offence under section 138 shall be
inquired into and tried only by a court
within whose local jurisdiction,-- (a) if the
cheque is delivered for collection through
an account, the branch of the bank where
the payee or holder in due course, as the
case may be, maintains the account, is
situated; or (b) if the cheque is presented
for payment by the payee or holder in due
course otherwise through an account, the
branch of the drawee bank where the
drawer maintains the account, is situated.
Explanation – For the purposes of clause
(a), where a cheque is delivered for
collection at any branch of the bank of the
payee or holder in due course, then, the
cheque shall be deemed to have been
delivered to the branch of the bank in
which the payee or holder in due course,
as the case may be, maintains the
account.”
4. In the principal Act, after section 142,
the following section shall be inserted,
namely:-
142A. (1) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 or any judgment, decree,
order or directions of any court, all cases
transferred to the court having
jurisdiction under sub-section (2) of
section 142, as amended by the
Negotiable Instruments (Amendment)
Ordinance, 2015, shall be deemed to have
been transferred under this Ordinance, as
if that sub-section had been in force at all
material times.
(2) Notwithstanding anything contained in
subsection (2) of section 142 or subsection
(1),
where the payee or the holder in due
course, as the case may be, has filed a
complaint against the drawer of a cheque
in the court having jurisdiction under subsection
(2) of section 142 or the case has
been transferred to that court under
subsection (1), and such complaint is
pending in that court, all subsequent
complaints arising out of section 138
against the same drawer shall be filed
before the same court irrespective of
whether those cheques were delivered for
collection or presented for payment
within the territorial jurisdiction of that
court.
(3) If, on the date of the commencement
of this Ordinance, more than one
prosecution filed by the same payee or
holder in due course, as the case may be,
against the same drawer of cheques is
pending before different courts, upon the
said fact having been brought to the
notice of the court, such court shall
transfer the case to the court having
jurisdiction under sub-section (2) of
section 142, as amended by the
Negotiable Instruments (Amendment)
Ordinance, 2015, before which the first
case was filed and is pending, as if that
subsection had been in force at all
material times.”
7. The Supreme Court in the recent decision in the
case of Bridgestone India Private Limited Vs
Inderpal Singh (2016)2 SCC75 has analysed and
interpreted newly inserted provisions in the N.I Act
and has observed as under :
“13. A perusal of the amended Section
142(2), extracted above, leaves no room for
any doubt, specially in view of the explanation
thereunder, that with reference to an offence
under Section 138 of the Negotiable
Instruments Act, 1881, the place where a
cheque is delivered for collection i.e. the
branch of the bank of the payee or holder in
due course, where the drawee maintains an
account, would be determinative of the place
of territorial jurisdiction.
14. It is, however, imperative for the
present controversy, that the appellant
overcomes the legal position declared by this
Court, as well as, the provisions of the Code of
Criminal Procedure. Insofar as the instant
aspect of the matter is concerned, a reference
may be made to Section 4 of the Negotiable
Instruments (Amendment) Second Ordinance,
2015, whereby Section 142A was inserted into
the Negotiable Instruments Act. A perusal of
Sub-section (1) thereof leaves no room for any
doubt, that insofar as the offence under
Section 138 of the Negotiable Instruments Act
is concerned, on the issue of jurisdiction, the
provisions of the Code of Criminal Procedure,
1973, would have to give way to the provisions
of the instant enactment on account of the
non-obstante clause in sub-section (1) of
Section 142A. Likewise, any judgment, decree,
order or direction issued by a Court would
have no effect insofar as the territorial
jurisdiction for initiating proceedings under
Section 138 of the Negotiable Instruments Act
is concerned. In the above view of the matter,
we are satisfied, that the judgment rendered
by this Court in Dashrath Rupsingh Rathod’s
case would also not non-suit the appellant for
the relief claimed.
15. We are in complete agreement with the
contention advanced at the hands of the
learned counsel for the appellant. We are
satisfied, that Section 142(2)(a), amended
through the Negotiable Instruments
(Amendment) Second Ordinance, 2015, vests
jurisdiction for initiating proceedings for the
offence under Section 138 of the Negotiable
Instruments Act, inter alia in the territorial
jurisdiction of the Court, where the cheque is
delivered for collection (through an account of
the branch of the bank where the payee or
holder in due course maintains an account).
We are also satisfied, based on Section
142A(1) to the effect, that the judgment
rendered by this Court in Dashrath Rupsingh
Rathod’s case,would not stand in the way of
the appellant, insofar territorial jurisdiction
for initiating proceedings emerging from
the dishonor of the cheque in the present case
arises.
16. Since cheque No.1950, in the sum of
Rs.26,958/-, drawn on the Union Bank of India,
Chandigarh, dated 02.05.2006, was presented
for encashment at the IDBI Bank, Indore,
which intimated its dishonor to the appellant
on 04.08.2006, we are of the view that the
Judicial Magistrate, First Class, Indore, would
have the territorial jurisdiction to take
cognizance of the proceedings initiated by the
appellant under Section 138 of the Negotiable
Instruments Act, 1881, after the promulgation
of the Negotiable Instruments (Amendment)
Second Ordinance, 2015. The words “...as if
that sub-section had been in force at all
material times...” used with reference to
Section 142(2), in Section 142A(1) gives
retrospectivity to the provision.”
.8 Thus, the conjoint reading of the newly inserted
provision of the N.I Act and the judgment of the
Supreme Court in Bridgestone India Private
Limited (supra), it is vividly clear that the newly
inserted provisions of the N.I Act are applicable with
retrospective effect of 15.6.2015 and the decision of
the Supreme Court in the case of Dashrath
Rupsingh Rathod (supra), is statutorily
superseded. I am, therefore, of the view that the
impugned order of the learned trial Magistrate
requires interference in this Revision Application.
9. For the forgoing reasons this Revision
Application is allowed. Order dated 27th March 2015
passed by learned 3rd Additional Chief Judicial
Magistrate, Surat, below Exhibit-1 in Criminal Case
No. 45028 of 2014, is hereby quashed and set aside.
Criminal Case No. 45028 of 2014 is restored on the
file of learned trial Magistrate who shall decide the
same in accordance with law. Rule is made absolute.
10. Direct service is permitted.
(A.G.URAIZEE,J)
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